Current Status Bill Number:4411 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19980114 Primary Sponsor:Meacham All Sponsors:Meacham, Campsen, Vaughn, Battle, Neilson, Cotty, Bailey, Littlejohn, Sandifer, Leach, Stoddard, H. Brown, Martin, Stille, Jordan, Mason, Canty, Mullen, Rice, Rodgers, Trotter, Keegan, Kennedy, Davenport, Riser, Hinson, Walker and Whatley Drafted Document Number:psd\7110ac.98 Companion Bill Number:860 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Sexually Violent Predator Act, Crimes and Offenses, sex offenses
Body Date Action Description Com Leg Involved
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House 19980114 Introduced, read first time, 25 HJ
referred to Committee
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TO AMEND TITLE 17, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMINAL PROCEDURES, BY ADDING CHAPTER 30 SO AS TO ENACT THE "SEXUALLY VIOLENT PREDATOR ACT" AND TO ESTABLISH PROCEDURES FOR DETERMINING IF A PERSON IS A SEXUALLY VIOLENT PREDATOR; TO PROVIDE FOR THE RIGHTS OF SUCH PERSONS IN THIS PROCESS; AND TO AUTHORIZE THE COMMITMENT OF SUCH PERSONS TO THE DEPARTMENT OF MENTAL HEALTH UPON ANTICIPATION OF RELEASE FROM INCARCERATION AND UNTIL THE PERSON IS SAFE TO BE AT LARGE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 17 of the 1976 Code is amended by adding:
Section 17-30-10. This chapter may be cited as the 'Sexually Violent Predator Act'.
Section 17-30-20. For purposes of this chapter:
(1) 'Sexually violent predator' means a person who has been convicted or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence, if not confined in a secure facility.
(2) 'Sexually violent offense' means:
(a) criminal sexual conduct in the first and second degrees, as provided for in Sections 16-3-652 and 16-3-653;
(b) assault with intent to commit criminal sexual conduct, first and second degree, as provided for in Section 16-3-656;
(c) engaging a child for a sexual performance, as provided for in Section 16-3-810;
(d) accessory before the fact to commit an offense enumerated in this item and as provided for in Section 16-1-40;
(e) attempt to commit an offense enumerated in this item, as provided for in Section 16-1-80.
Section 17-30-30. (A) When it appears that a person may meet the criteria of a sexually violent predator, the agency with jurisdiction shall give written notice of this to the Attorney General and the multidisciplinary team established in subsection (C), ninety days before:
(1) the anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of persons who are returned to prison for no more than ninety days as a result of revocation of postrelease supervision, written notice must be given as soon as practicable following the person's readmission to prison;
(2) release of a person who has been charged with a sexually violent offense and who has been determined to be incompetent to stand trial;
(3) release of a person who has been found not guilty by reason of insanity of a sexually violent offense; or
(4) release of a person who has been found guilty of a sexually violent offense but mentally ill.
(B) The agency with jurisdiction shall provide the Attorney General and the multidisciplinary team established in subsection (D) with:
(1) the person's name, identifying factors, anticipated future residence, and offense history;
(2) documentation of institutional adjustment and any treatment received;
(3) information and records.
(C) The director of the Department of Corrections shall establish a multidisciplinary team which may include individuals from other state agencies to review available records of each person referred to the team pursuant to subsection (A). The team, within thirty days of receiving notice, shall assess whether or not the person meets the definition of a sexually violent predator. The team shall notify the Attorney General of its assessment.
(D) The Attorney General shall appoint a prosecutor's review committee to review the records of each person referred to the Attorney General pursuant to subsection (A). The prosecutor's review committee shall assist the Attorney General in the determination of whether or not the person meets the definition of a sexually violent predator. The assessment of the multidisciplinary team must be made available to the Attorney General and the prosecutor's review committee.
Section 17-30-40. When it appears that the person presently confined may be a sexually violent predator and the prosecutor's review committee appointed as provided in Section 17-30-30(D) has determined that the person meets the definition of a sexually violent predator, the Attorney General may file a petition, within seventy-five days of the date the Attorney General received the written notice by the agency of jurisdiction as provided in Section 17-30-30(A), alleging that the person is a sexually violent predator and stating sufficient facts to support the allegation.
Section 17-30-50. (A) Upon filing of a petition, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator, and if the judge determines the person is a sexually violent predator, the judge shall direct that the person be detained in custody.
(B) Within seventy-two hours after a person is detained in custody pursuant to subsection (A), the person must be provided with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the detained person is a sexually violent predator. At this hearing the court shall:
(1) verify the person's identity and facility at which the person is detained;
(2) determine whether probable cause exists to believe that the person is a sexually violent predator.
The State may rely upon the petition and supplement the petition with additional documentary evidence or live testimony.
(C) At the probable cause hearing as provided in subsection (B), the detained person has the rights in addition to the rights previously specified to:
(1) be represented by counsel;
(2) present evidence on the person's behalf;
(3) cross-examine witnesses who testify against the person;
(4) view and copy all petitions and reports in the court file.
(D) If the court finds there is probable cause to believe that the person is a sexually violent predator, the court shall direct the person to be transferred to an appropriate secure facility including, but not limited to, a county jail, for an evaluation as to whether the person is a sexually violent predator. The evaluation must be conducted by a person professionally qualified to conduct the examination.
Section 17-30-60. Within sixty days after the completion of a hearing held pursuant to Section 17-30-50, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and if the respondent will not be substantially prejudiced. At all stages of the proceedings under this chapter, a person subject to this chapter is entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist the person. If a person is subjected to an examination under this chapter, the person may retain experts or professional persons to perform an examination of the person. If the person wishes to be examined by a qualified expert or professional person of the person's own choice, the examiner must be permitted to have reasonable access to the person for the purpose of the examination, and access to all relevant medical and psychological records and reports. If the person is indigent, the court, upon the person's request, shall determine whether the services are necessary and reasonable compensation for the services. If the court determines that the services are necessary and the expert or professional person's requested compensation for the services is reasonable, the court shall assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf. The court shall approve payment for the services upon the filing of a certified claim for compensation supported by a written statement specifying the time expended, services rendered, expenses incurred on behalf of the person, and compensation received in the same case or for the same services from any other source. The person, the Attorney General, or the judge has the right to demand that the trial be before a jury. A demand for the trial to be before a jury must be filed, in writing, at least four days before trial. If no demand is made, the trial must be before the court.
Section 17-30-70. (A) The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If a determination that the person is a sexually violent predator is made by a jury, the determination must be by unanimous verdict of the jury. This determination may be appealed. If the court or jury determines that the person is a sexually violent predator, the person must be committed to the custody of the Department of Mental Health for control, care, and treatment until such time as the person's mental abnormality or personality disorder has so changed that the person is safe to be at large. The control, care, and treatment must be provided at a secure facility operated by the Department of Mental Health, and these persons must be segregated at all times from other patients under the supervision of the Department of Mental Health. The Department of Mental Health may enter into an interagency agreement with the Department of Corrections for the confinement of these persons. Persons who are in the confinement of the Department of Corrections pursuant to an interagency agreement must be housed and managed separately from offenders in the custody of the Department of Corrections and, except for occasional instances of supervised incidental contact, must be segregated from these offenders. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct the person's release. Upon a mistrial, the court shall direct that the person be held at an appropriate secure facility including, but not limited to, a county jail, until another trial is conducted. A subsequent trial following a mistrial must be held within ninety days of the previous trial, unless the subsequent trial is continued.
(B) If a trial is being held pursuant to Section 17-30-60 and this section concerning a person charged with a sexually violent offense who has been found incompetent to stand trial and whose release is imminent, the court first shall hear evidence and determine whether the person committed the act or acts charged. The hearing on this issue must comply with all the procedures specified in this section. In addition, the rules of evidence applicable in criminal cases apply, and all constitutional rights available to defendants at criminal trials, other than the right not to be tried while incompetent, apply. After hearing evidence on this issue, the court shall make specific findings on whether the person committed the act or acts charged, the extent to which the person's incompetence affected the outcome of the hearing, including its effect on the person's ability to consult with and assist counsel and to testify on the person's own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution's case. If after the conclusion of the hearing on this issue, the court finds beyond a reasonable doubt that the person did commit the act or acts charged, the court shall enter a final order, appealable by the person, on that issue, and may proceed to consider whether the person should be committed pursuant to this chapter.
Section 17-30-80. (A) A person committed under this chapter annually shall have an examination of the person's mental condition. The person may retain or, if the person is indigent and so requests, the court may appoint a qualified professional person to examine the person, and the expert or professional person shall have access to all records concerning the person. A report of the annual examination must be provided to the court that committed the person under this chapter. The court shall conduct an annual review of the status of the committed person. Nothing contained in this chapter prohibits the person from otherwise petitioning the court for discharge at this hearing.
(B) The director of the Department of Mental Health shall provide the committed person with an annual written notice of the person's right to petition the court for release over the director's objection. The notice shall contain a waiver of rights. The director shall forward the notice and waiver form to the court with the annual report. The committed person has a right to have an attorney represent him at the hearing, but the person is not entitled to be present at the hearing. If the court at the hearing determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged, then the court shall set a hearing on the issue. At the hearing, the committed person is entitled to be present and entitled to the benefit of all constitutional protections that were afforded the person at the initial commitment proceeding. The Attorney General shall represent the State and has a right to a jury trial and to have the committed person evaluated by experts chosen by the State. The committed person also has the right to have experts evaluate the person on his behalf, and the court shall appoint an expert if the person is indigent and requests an appointment. The burden of proof at the hearing is upon the State to prove beyond a reasonable doubt that the committed person's mental abnormality or personality disorder remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence.
Section 17-30-90. If the director of the Department of Mental Health determines that the person's mental abnormality or personality disorder has so changed that the person is not likely to commit predatory acts of sexual violence if released, the director shall authorize the person to petition the court for release. The petition must be served upon the court and the Attorney General. The court, upon receipt of the petition for release, shall order a hearing within thirty days. The Attorney General shall represent the State and has the right to have the petitioner examined by an expert or professional person of the Attorney General's choice. The hearing must be before a jury if demanded by either the petitioner or the Attorney General. The burden of proof is upon the Attorney General to show beyond a reasonable doubt that the petitioner's mental abnormality or personality disorder remains such that the petitioner is not safe to be at large and that if discharged is likely to commit predatory acts of sexual violence.
Section 17-30-100. In order to protect the public, relevant information and records which otherwise are confidential or privileged must be released to the agency with jurisdiction or the Attorney General for the purpose of determining whether a person is or continues to be a sexually violent predator.
Section 17-30-110. Psychological reports, drug and alcohol reports, treatment records, reports of the diagnostic center, medical records, or victim impact statements which have been submitted to the court or admitted into evidence under this chapter must be part of the record but must be sealed and opened only on order of the court.
Section 17-30-120. The agency with jurisdiction, its employees and officials, members of the multidisciplinary team established in Section 17-30-30, members of the prosecutor's review committee appointed as provided in Section 17-30-30, officials, employees, and agents of the Department of Mental Health and the Department of Corrections, and individuals contracting, appointed, or volunteering to perform services under this chapter are immune from liability for any good-faith conduct under this chapter.
Section 17-30-130. A person released pursuant to this chapter who otherwise must register pursuant to Article 7, Chapter 3, Title 23 must comply with Article 7, Chapter 3, Title 23."
SECTION 2. This act takes effect October 1, 1998.